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'Noise, Distraction, Fabrication' Mar Water Rights Debate

Experts rebut foes’ claim that ‘public trust’ means ‘state control’

July 14, 2010 | By Glenn Puit
Great Lakes Bulletin News Service

  The best way to defend Great Lakes Basin water from export, some legal experts say, is with “public trust” protection.

In 2007, journalist Peter Gleick was in Las Vegas attending a conference for water-bottling companies when the keynote speaker made a startling suggestion: Those wishing to make it easier to pump, bottle, and sell water from America’s aquifers “could benefit greatly from exploring the strategies that have been used to produce oil."

Now, in his new book, Bottled and Sold, Mr. Gleick says that many water-bottling companies are trying hard to follow that advice.

That worries Michigan citizens promoting better protection of Great Lakes water. They say it could eventually make Michigan the Saudi Arabia of water, and add that there are firms in Michigan now thinking and acting that way, most notably international food giant Nestle S.A.

One of that company’s subsidiaries, Nestle Waters North America, battled Michigan citizens in court for years before winning permission to withdraw up to 200 gallons of water per minute from aquifers in Mecosta County.

Some Michigan residents have no problem with that kind of activity and, in fact, see it as a property rights issue. They believe companies like Nestle should be allowed to withdraw more water from its Mecosta plant, build similar facilities around the state, and ship the water wherever they desire.

That includes Russ Harding, who headed the Michigan Department of Environmental Quality when Nestle got its permit to bottle and sell Mecosta water.

“I think water is an economic and strategic advantage we should exploit positively,” Mr. Harding, who now works for the Midland-based Mackinac Center for Public Policy, told the Great Lakes Bulletin News Service.

Others, however, see great peril in allowing unrestricted export of Michigan water from the Great Lakes Basin. They say that, while a recently enacted international treaty protects the big lakes’ surface water from such withdrawals, it still leaves the Basin’s groundwater vulnerable to exporting.

Seeking to change that, Michigan State Representative Dan Scripps last year introduced legislation putting Michigan’s groundwater in the “public trust,” a designation that would prevent exporting it outside the Basin. A grass roots movement, FLOW, is now promoting that proposal.

Scripps’ bill earned praise as a common-sense approach to protecting landowners, farmers, and the general public from withdrawals that could harm their own access to well water. But it quickly encountered a well-organized campaign that attacked the legislation as a violation of “property rights”—and the bill died in committee.

The resistance is similar to that several other states have seen, but at least two of those, Vermont and New Hampshire, now protect their aquifers with “public trust” designations, and have seen none of the dire results Michigan critics of public trust warn against.

Nestle Triggers Call for Public Trust
The battle over groundwater rights in Michigan began in Mecosta County, in north-central Lower Michigan, in 2001, when Nestle targeted the headwaters of the Little Muskegon River.

The company received permission from the Michigan Department of Environmental Quality to pump water from aquifers feeding the river. That, however, touched off a nearly decade-long fight between the giant company and a grassroots citizen group. The group, Michigan Citizens for Water Conservation, wanted to protect the aquifer, the river, two nearby lakes connected to it, and the wells of area property owners, who could be left high and dry if the company pumped too much water too quickly.

In court, experts argued that Nestle’s proposed pumping would reduce the river’s flow by 28 percent and the level of the two lakes by as much as 6 inches. A Mecosta County district court judge agreed in 2003 and halted Nestle’s water withdrawal because it would cause substantial harm.

But Nestle got the court’s permission to continue pumping water during its pending appeal. Then, in 2005, the Michigan Court of Appeals adopted a “reasonable use balancing test,” determining that water in aquifers feeding rivers could be bottled and sold if the commercial or community benefits of exporting outweighed harm caused by its extraction. Eventually, MCWC and Nestle agreed that the company could withdraw no more than 200 gallons per minute from its well—and no more than 125 gallons a minute during spring and summer.

Since then, Michigan has legislated somewhat tighter water withdrawal rules and adopted software that models the effects of water withdrawals on lakes and streams. But critics maintained that the Appeals Court’s “reasonable use balancing test” created a huge loophole. It would, they said, allow companies to make very large withdrawals if they prove that their profits or the benefits to a community outweigh extraction’s environmental harm.

Representative Scripps’ legislation sought to close that loophole by placing groundwater in “the public trust.” That meant allowing the public to access groundwater for private residential, agricultural, and industrial use, but would limit bottling and selling it as a product.

“Primarily, it would prevent the state or a private corporation from exporting water for private gain,” said Jim Olson, the noted Traverse City-based environmental attorney who fought Nestle on behalf of MCWC in court, and is a leading proponent for public trust legislation. “It is basically a legal declaration to the world that the Great Lakes are not for sale and the waters that feed them are not for sale, either.”

Attorney Olson, MCWC, and others hoped that a long, ongoing process—the attempt by eight U.S. states and Ontario to write an international treaty prohibiting large-scale withdrawals from the Great Lakes—would eventually bolster their hard-fought legal position.

After Washington and the states ratified the historic Great Lakes Basin Compact in 2006, Mr. Olson and other water protection advocates agreed it was a great step forward. But the attorney has since pointed out that the Compact did not declare water to be a public trust and still allows companies to ship Great Lakes water virtually anywhere, as long as it was stored in small containers.

That, they asserted, meant that water could still be treated as a product—and was not protected by public trust designation.

State Representative Scripps agreed, and introduced the public trust declaration as legislation in 2009. The proposed three-paragraph bill declared “the waters of the state, including groundwater, are held in trust by the state. The state shall protect these waters and other natural resources that are subject to the public trust (for) the benefit of present and future generations.”

Fighting Fear Tactics
But some well drillers in Michigan, who make their living piercing and then drawing water from aquifers, quickly began misrepresenting the bill’s language and Mr. Scripps’ intentions. Some drillers claimed that public-trust designation is simply a gateway to taxing wells on private property.

A political flier from a nebulous, right wing property rights group affiliated with the Tea Party movement added to the fray. It alleged “Your State Representative, Dan Scripps, thinks you should need permission from him and the rest of the political elite before you use the groundwater on your own property, for any reason!”

The Mackinac Center also began chiming in; a column by Mr. Harding published by the Center claimed the legislation would require a permit for using water and would lead to government control of peoples’ water, in essence a legal “takings.”

Another driller struck again earlier this week. In a letter to the Muskegon Chronicle,the writer echoed Mr. Harding’s claim that the legislation represents “the largest takeover of our property rights that we have ever seen.”

Advocates of declaring water a public trust reject these claims out of hand.

Mr. Scripps, for example, told the News Service that there is no plan to tax water. He added that his legislation would protect, not harm, residents and businesses’ access to groundwater simply by preventing it from being pumped and exported from the Basin by others.

Other water rights experts interviewed for this article said the same thing: Suggestions that public trust designation opens the door to taxing well water or wresting control of wells away from private citizens are scare tactics.

“It’s noise and distraction—noise, distraction and fabrication,” said Grenetta Thomassey, policy director for the Tip of the Mitt Watershed Council. “As we move forward in time and fresh water resources become more and more precious because of a changing climate and changing political structures, the public is going to want freshwater resources, below ground and above, protected to the fullest extent.”

Vermont’s Lesson
As Michiganders consider declaring their groundwater a public trust, they can find lessons in Vermont, which put its groundwater in public trust nearly two years ago.

Vermont’s fight for protecting water rights was long and hard. As in Michigan, groundwater protection concerns stemmed from attempts by companies to bottle and sell water drawn from the state’s aquifers.

Vermont state Senator Virginia Lyons, a key, pro-public trust player, said she acted on a very simple principle.

“I think water belongs to everyone—it’s the equivalent of the air we breathe,” Senator Lyons told the news service. “The water we have for use, just like all of our other natural resources, require judicious stewardship so future generations will not be left high and dry.”

Jon Groveman, a lawyer for the Vermont Natural Resources Council, helped craft the legislation. He said that, as in Michigan, Vermonters opposed to public trust designation claimed that it would harm the individual property rights of landowners and would lead to a tax on well water. Mr. Groveman said both those claims were untrue.

He sees a lot of irony in regarding public trust as a violation of property rights: Public trust designation actually protects, rather than erodes, property owners’ water rights because it prevents others from drilling into the same aquifer, pumping it heavily, selling the water for a profit, and draining the wells of nearby farmers, homeowners, or businesses.

“Everyone with a home has a reasonable right to access clean potable drinking water,” Mr. Groveman said. “The public trust would protect that right. It stops the abuse of public water. All of the lawyers [we talked to] agreed it’s not a ‘takings’ to designate water as a public trust resource. Every lawyer agreed with it. It’s really clarifying the role of the state to manage groundwater and protect it.”

Since implementing public trust in Vermont, residents have not seen new taxes on well water, nor water police storming peoples’ property. In fact, there’s been very little difference at all in the day-to-day water withdrawals, Vermont officials say.

The same is true, according to officials, in neighboring New Hampshire, where officials tweaked state laws to encompass the public trust concept.

Mitch Jones, of the advocacy group Food and Water Watch, said public trust is simply a legal designation that gives water users added protections in the courts and ensures the availability of the resource for future generations.

“I would want people to keep an open mind and I hope that they would see by putting groundwater in the public trust, we are recognizing that water is a human right,” Mr. Jones said. “The only way to defend it is as such—to collectively defend it by extending the trust to groundwater.”

Glenn Puit is a policy specialist for the Michigan Land Use Institute. Reach him at glenn@mlui.org.

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